COURT FILE NO.: CR-23-50000315-0000 DATE: 20240501 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – ZEISHAN GILL Defendant
Counsel: Simon King, for the Crown Mitchell Huberman, for the Accused
Heard: March 19, 2024
HIMEL J.
Reasons for Sentence
[1] Mr. Gill entered a plea of guilty to the charge of possession of a loaded restricted firearm without being the holder of an authorization or licence permitting such possession contrary to s. 95(1) of the Criminal Code (hereinafter “the Code”). Mr. Gill had elected to be tried by a judge sitting alone. Mr. Gill confirmed that he was entering the plea voluntarily, that he understood the plea was an admission of the essential elements of the offence, that he was aware he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware this court was not bound by any agreement made between counsel regarding the appropriate sentence. Mr. Gill also confirmed that he is a Canadian citizen and therefore, he does not have immigration consequences arising from a conviction.
[2] Counsel have made their submissions on sentence. The following are my reasons for sentence.
Factual Background
[3] In the fall of 2021, members of 11 Division Major Crimes Unit were investigating Ramazan Oksem for drug trafficking. On November 13, 2021, police were given judicial authorization to execute a Controlled Drugs and Substances Act search warrant at 163 Northland Avenue. Mr. Oksem was the target of the search warrant. The search warrant was executed at 6:10 p.m. Police first entered the main floor before going down to the basement apartment. Mr. Oksem was renting an Airbnb unit in the basement.
[4] At the time that the police entered the main floor, Mr. Oksem’s Glock 30 Gen 4 handgun, with the serial number BNNV095 was on the kitchen table and loaded. Zeishan Gill was in the unit at the time. After hearing the police enter the main floor, Mr. Oksem told Mr. Gill to move the gun from the table. Mr. Gill picked up and gun and placed it in a shelving unit in the living room wedged between linens in the closet. Mr. Gill then laid down on the floor waiting for police arrival.
[5] When officers gained entry into the basement unit, Mr. Oksem was in the process of flushing a quantity of cocaine down the kitchen sink and Mr. Gill was lying prone on the floor.
[6] Mr. Oksem and Mr. Gill were arrested, and officers proceeded to search the premises. A variety of drugs were found in different parts of the unit. It is agreed that these drugs belonged to Mr. Oksem. Mr. Oksem’s Glock firearm was located in the shelving unit in the living room, wedged between linens in the closet right where Mr. Gill had placed it. Mr. Oksem has also already pleaded guilty to possessing the loaded Glock firearm.
[7] A swab of the firearm and magazine was collected and sent to the Centre of Forensic Sciences for DNA testing. The results showed DNA from at least two people, including at least one male. Zeishan Gill could not be excluded as the source of a male DNA profile from the swab of the firearm and magazine. The DNA results are estimated to be greater than one trillion times more likely if the DNA profile originates from Zeishan Gill than if it originates from an unknown person, unrelated to him.
[8] It is agreed that the basement apartment was being rented by Mr. Oksem through Airbnb and that Mr. Gill was a found in.
[9] It is agreed that the Glock firearm belonged to Mr. Oksem but that Mr. Gill had fleeting possession of it when he moved it from the kitchen table to the closet. This transitory possession satisfies the legal requirements of knowledge and control.
[10] On the basis of these facts, I found Mr. Gill guilty of possession of a loaded restricted firearm without being the holder of a licence or registration.
Evidence Led at the Sentencing Hearing
[11] Crown counsel filed an Agreed Statement of Facts. He also submitted Mr. Gill’s criminal record which contains the following entries: March 27, 2008: Fail to comply with recognizance for which he received a suspended sentence and one year of probation; April 14, 2008: Traffick in a Schedule I substance and possession of a Schedule III substance for which he received a 12 month sentence served as a conditional sentence on each charge concurrent and a s. 109 order; on January 21, 2013, he was convicted of possession of a firearm knowing its possession is unauthorized, possession of a prohibited or restricted firearm, possession of a firearm or ammunition contrary to a prohibition order for which he received a sentence of 11 months and 15 days on each charge concurrent with credit for the equivalent of 11 months of pre-sentence custody and a s. 109 order. and on the same date, possession of a Schedule I substance for the purpose of trafficking for which he received a sentence of 12 months consecutive to the other sentences.
[12] Counsel for Mr. Gill submitted an affidavit from Mr. Gill indicating his background. Mr. Huberman filed letters of support from Mr. Gill’s mother, Elizabeth Gill, from his sister, Noreen Frederick, from his brother-in-law, Dale Frederick, and from Tanuj Sharma, Addictions Counsellor, the Vitanova Foundation who outlined the treatment Mr. Gill has undergone with Vitanova which specializes in working with persons who have addiction to drugs and alcohol. The information from these documents will be discussed below.
Positions of the Parties on Sentence
[13] Crown counsel submits that an appropriate sentence in this case is a period of imprisonment of two years less one day with credit of 11 days of pre-sentence custody at 1.5:1 for a total of 17 days. Mr. King agrees with the defence that Mr. Gill should receive credit of 6 months in accordance with R. v. Downes, (2006), 2006 ONCA 3957, 37 C.R.(6th) 46 (Ont. C.A.). This would leave a sentence of 17.5 months to be served in custody. Mr. King requests that the court order a period of probation for two years to follow the period of imprisonment with conditions that Mr. Gill attend counselling for drug addiction, that he sign any necessary releases and that he not possesses any weapons. Crown counsel further seeks the following ancillary orders: a s. 109 order for life and an order that a sample of Mr. Gill’s DNA be taken as this is a secondary designated offence.
[14] Mr. King explained that Mr. Oksem was the target of the police investigation and was the only one who was witnessed during surveillance. Mr. Gill was a found in. Mr. Oksem has pleaded guilty to possession of the same firearm and through a global resolution of a case in Brampton, he was sentenced to two years less one day in custody for possession of this gun arising from these circumstances consecutive to a five-year sentence for discharge of the same firearm in Brampton. The drugs found in the residence were not associated with Mr. Gill. Mr. Oksem did not have a previous criminal record for a firearms offence but had a more recent criminal record than Mr. Gill.
[15] Crown counsel noted Mr. Gill’s prior record and that he was convicted of possession of a firearm in 2013. He has no other outstanding charges and no breaches of court orders. Mr. King explains the concern that this would be Mr. Gill’s second entry for possession of a firearm offence but recognizes that Mr. Oksem was the primary owner of the firearm. He suggests that Mr. Gill should not receive a higher sentence than Mr. Oksem. Mr. King was frank that at the preliminary hearing, Crown counsel wondered if he would proceed against Mr. Gill but that upon receiving the DNA report (although there was no other evidence against Mr. Gill), the Crown made the decision to proceed. However, Crown counsel cannot agree with the submission that there be a sentence served in the community for a possession of a firearm where there has been a previous firearms conviction.
[16] Defence counsel, Mr. Huberman, submits that Mr. Gill should receive a sentence of 2 years less one day served as a conditional sentence with credit for pre-sentence custody of 11 days at 1.5:1 and credit for 6 months in accordance with R. v Downes. The defence position is that the remaining 17.5 months of imprisonment should be served in the community under a conditional sentence order and that the conditional sentence be followed by two years’ probation with terms. The defence does not oppose the ancillary orders sought by the Crown.
[17] Mr. Huberman submits to the court that this case is one that is at the low end of the spectrum of gun offences in terms of the gravity of the offence and the degree of responsibility of the offender for the following reasons: the gun was not in a public place, the gun was not associated with the “tools of the trade” (there was no evidence that Mr. Gill was in possession of the gun in conjunction with drug trafficking), he was not linked to other criminality, he had a fleeting possession of the gun (he was not the owner), and the length of time he possessed the gun was momentary. Regarding the degree of responsibility of the offender, Mr. Gill’s circumstances were that he was homeless and was a drug addict at the time. He was at the location because Mr. Oksem offered him a place to stay and access to drugs. He has entered a plea of guilty.
[18] Counsel argues that in cases involving the combination of a gun offence with other criminal activity, the sentence range is generally between 3- and 5-years’ imprisonment. However, where the firearm offence is not connected with other another crime such as drug trafficking, a sentence of 2 years less a day is generally imposed. In some of these cases, a conditional sentence is ordered: see R. v. Ramos, 2023 ONSC 1094; R. v. Beharry, 2022 ONSC 4370; R. v. Collins, 2023 ONSC 5768; R. v. Stewart, 2022 ONSC 6997; R. v. O’Dwyer, 2023 ONCJ 80; R. v. Desmond-Robinson, 2022 ONCA 369 and R. v. Morris, 2021 ONCA 680.
[19] Mr. Huberman outlined Mr. Gill’s personal circumstances which are referenced below. He takes the position that since Mr. Gill has attended an intensive treatment program and has addressed the root cause of his problems (disconnection from family, homelessness and drug addiction), he has already taken steps to turn his life around. Sending Mr. Gill to serve his sentence in a custodial setting would disrupt his rehabilitation. As Justice Schreck said in Beharry, rehabilitation of the offender is the way to ensure public safety ultimately.
[20] In summary, Mr. Huberman submits that it is appropriate for this court to order that the period of imprisonment be served as a conditional sentence as the sentence would not endanger the safety of the community as shown by Mr. Gill being in compliance with bail terms for over two years, that he completed a conditional sentence in 2008 and a period of probation in 2013. He is able to follow court orders. Further, Mr. Gill has a plan to live with his parents, to continue with the drug treatment program at Vitanova and to work as a cleaner. With strict terms during the first half of the sentence in particular, denunciation and deterrence can be achieved. Counsel recommended to the court that the first half of the conditional sentence include terms of house arrest with exceptions to leave the house for employment, treatment and to attend medical appointments and the second half of the conditional sentence include a curfew.
Analysis and the Law
[21] The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R v. Danvers, 2005 ONCA 30044, 201 O.A.C. 138, at para. 78. The prevalence of gun violence in our community must be stopped through exemplary sentences. In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada also emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. Possession of an illegal handgun is a serious offence warranting a severe penalty. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19-year-old first offender.
[22] In the decision of the Court of Appeal reported at 2013 ONCA 677, Doherty J.A. wrote at para. 206: “Individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”
[23] In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, the court wrote: This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677, at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.
[24] While the principles of deterrence and denunciation are primary objectives on sentencing for firearm offences, decisions of our courts also recognize that sentencing is a highly individualized process driven by the unique circumstances of the offence and the circumstances of the offender.
[25] In R. v. Ramos, [2023] O.J. No. 805, Goldstein J. sentenced the offender who pleaded guilty to possession of a loaded prohibited firearm. Ms. Ramos was also found guilty of possession of cocaine for the purpose of trafficking following a summary trial. While Justice Goldstein noted that cases involving loaded prohibited firearms require exemplary sentences and sentences in the range of three years for a first offender are the norm, he held that Ms. Ramos’ moral blameworthiness was relatively low as she was not the true owner but was a passenger in the car where 9.5 grams of cocaine and cash as well as a loaded firearm were stored in the trunk. He sentenced her to two years less a day concurrent on all counts and ordered that she serve her sentence in the community as a conditional sentence. Ms. Ramos had overcome her drug addiction since her arrest and had been on bail for five years.
[26] In R. v. Beharry, 2022 ONSC 4370, Justice Schreck sentenced the offender, following receipt of an Enhanced Pre-Sentence Report, to two years less one day served in the community as a conditional sentence for the offences of possession of a firearm without being the holder of a licence, possession while knowingly not being the holder of a licence and occupying a motor vehicle knowing that a firearm was in it. He held that possession of the firearm was not a tool of the trade, that Mr. Beharry had rehabilitation potential, that he did not have a criminal record and that systemic racial factors were present. He held that the sentence should fall in the upper reformatory range. He considered Downes credit in mitigation as Mr. Beharry had been on house arrest followed by a curfew. He noted that rehabilitation ensures the protection of society ultimately.
[27] In the case of R. v. Lewis, [2022] O.J. No. 872, Boswell J. sentenced a 25-year-old offender for possession of a loaded prohibited firearm and possession of cocaine following guilty pleas to two years for the weapons offence to which he credited for 7 ½ months in custody with two months credit for harsh conditions of incarceration and four months in recognition of stringent bail conditions for the first nine months of release followed by a curfew for 20 months. The sentence was ordered to be served in the community as a conditional sentence.
[28] In the case of R. v. Stewart, 2022 ONSC 6997, following a trial, Copeland J. sentenced an offender found guilty of four counts of possession of a loaded prohibited firearm with an over-capacity magazine to two years less a day served as a conditional sentence followed by two years of probation. The offender was 19 years old and had no criminal record. He ran away from the police and discarded the gun. While he was on bail for these offences, he pleaded guilty to breaching his recognizance. However, he complied with 3.5 years of bail without a breach. He had taken counselling and had good rehabilitative prospects. The court took into account his cultural background, young age, lack of a criminal record, and family background of the offender. The court also noted that he had been on bail without incident for 3.5 years and ordered that the upper reformatory sentence should be served as a conditional sentence. Justice Copeland cited R. v. Morris, 2021 ONCA 680 where the Court of Appeal for Ontario wrote that anti-Black racism is relevant to sentencing and applying the decision of Morris, she found that since the range of sentence was in the upper reformatory range because of the offender’s young age at the time of the offence and that he was a first offender, exercising the principle of restraint, the sentence of two years less a day should be served as a conditional sentence with terms that would meet the objectives of deterrence and denunciation.
[29] In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal upheld the trial judges’ sentence of 18 months for the firearms offence but reversed the trial judge who declined to order a conditional sentence saying it was outside of the range affirmed by the Court of Appeal. The court wrote at para. 13 that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see R. v. Morris, 2021 ONCA 680. As discussed earlier, in Morris, the Court of Appeal held that a sentencing judge should give careful consideration to the imposition of a conditional sentence which can be used to “…ameliorate the longstanding problem of the overincarceration of young Black men” at para. 180. In R. v. Desmond-Robinson, the youthful offender had no criminal record and was on bail for five years without incident. There were relevant factors of systemic racism. Mr. Desmond-Robinson had taken steps to complete a culinary program, was working as a chef and had childcare responsibilities all showing rehabilitative potential.
[30] In R. v. Edwards, 2023 ONCJ 53, Band J. sentenced a first offender to two years less a day for a s. 95 offence and noted that the plea had saved the court valuable resources. Mr. Edwards was a first offender who had been on bail with house arrest conditions for 17 months. The possession was not associated with other criminality. The court referenced the scarce court resources. In R. v. Marier, 2023 ONSC 5194, Garton J. sentenced an offender who pleaded guilty on the first day of trial for possession of a loaded prohibited firearm without being the holder of a licence to two years less a day with credit of 46 days served as a conditional sentence. There, the offender had possession of a gun in a public place, fled from police and discarded the gun by throwing it into someone’s backyard. Possession was proven through photographs that he possessed on his phone which showed that the possession was deliberate. There were relevant racial factors. At the time of the offence, Mr. Marier was bound by a weapons prohibition order. He was a youthful first offender with family support and he had been on house arrest for four years. He had taken steps toward his rehabilitation.
[31] In R. v. O’Dwyer, 2023 ONCJ 80, the offender was travelling with a gun which was not loaded but was stopped by police because the car he was driving was stolen. He had the revolver in his pant pocket while knowingly was in possession of a stolen vehicle. Justice Cole noted that the offender had steady employment, had been on a binge of using crack cocaine at the time and had not possessed a firearm since 2012. He considered this as a “lapse” from good behaviour and ordered that the sentence be served as a conditional sentence.
[32] In the case of R. v. Collins, 2023 ONSC 5768, Justice Code sentenced an offender following guilty pleas to trafficking cocaine, possessing a loaded prohibited firearm, possessing a loaded firearm contrary to a s. 109 order, possessing cocaine for the purpose of trafficking and possessing proceeds of crime. The guilty pleas took place after an application where Justice Code found breaches of ss. 8 and 10(b) of the Charter and took those into account in mitigation on sentence. Mr. Collins had a criminal record which included convictions for possessing cocaine and fentanyl for the purpose of trafficking, possession of ammunition contrary to a s. 110 order and breach of a house arrest recognizance. Following the pleas, he attended counselling sessions to address PTSD and its effect on his mental health. Code J. considered the guilty pleas at a time when resources are scarce. He credited Mr. Collins for the strict house arrest bail that he was on for one year and eight months. He sentenced Mr. Collins to two years less a day served as a conditional sentence with strict terms.
Decision
[33] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[34] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.
[35] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.
[36] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Gill.
[37] Mr. Gill is 37 years old and was born on October 1, 1986, in Pakistan. He was 35 years old at the time of the offence. Mr. Gill’s mother explained in her affidavit that she is from Pakistan where she worked as a nurse. She met her husband there and they started a family. Her husband worked as an electrician and a cook. They had three daughters and two sons. The family moved to Canada in 1998. Ms. Gill re-trained as a nurse, worked as a nurse from 2006-18 and is now retired. Her husband returned to school to become a personal support worker and worked in that capacity for many years. He is also retired. Both are Canadian citizens. Mr. Gill became a Canadian citizen in 2000. Mr. Gill grew up with his two parents and a brother and three sisters in a two-bedroom apartment. His parents were out of the home a great deal for work and there were a number of arguments in the home.
[38] When he was 15 years old, Mr. Gill left the home and lived on the street or stayed with friends. He dropped out of school when he was in Grade 11. He has had substance abuse issues since he was 13 years of age. He used alcohol and drugs such as ecstasy, cocaine and percocet to cope with his personal circumstances.
[39] Mr. Gill worked during the years 2007 to 2010 as a cleaner at the Elmwood Spa and also did factory work. He managed to complete his high school equivalent in 2013. However, he was not speaking to family during this time.
[40] His drug addiction was at its worst in 2019. He could not afford to pay rent and he stayed with friends. Mr. Gill’s criminal record is outlined above.
[41] In the affidavit of Mr. Gill filed with the court, he explained the circumstances which led to the offence. He was homeless and a drug addict. He was offered a place to stay with Mr. Oksem who had supplied him with drugs in the past.
[42] Mr. Gill was arrested on this charge on November 13, 2021. He was in custody for 11 days and released on terms of house arrest. He first lived with his parents and his mother was his surety. However, his mother had health issues and could not be his surety. He moved to live with his sister and brother-in-law and his brother-in-law is his surety. His sister and brother-in-law wrote letters saying that Mr. Gill has followed all the terms of his bail and helped with housework and with the children. Since he has been on bail, he has reconciled with friends and family. He has attended a treatment program at the Vitanova Foundation. In a letter submitted to the court dated January 8, 2024, his counsellor outlined the three separate stages of the treatment which included 8 weeks as an outpatient which he completed on May 9, 2023, an inpatient program for 3 months which he completed on August 31, 2023, and further aftercare outpatient services where he has attended 34 sessions to date. The correspondence speaks to Mr. Gill’s commitment to treatment and that the program is available for him.
[43] In summary, if permitted to live in the community, Mr. Gill would like to continue with counselling at Vitanova Foundation and he would like to resume working as a cleaner. He would also prefer to return to live with his mother now that her treatment is completed. Mr. Gill’s mother has confirmed that her cancer is in remission, and she is prepared to have her son return to live with her and her husband along with their 30-year-old daughter. Mr. Gill would have his own bedroom.
[44] With respect to the circumstances of the offence, Mr. Gill was found guilty of one count of possession of a loaded restricted firearm. The possession was brief, and he was not the owner of the gun.
[45] In the case at bar, there are many factors in mitigation including that Mr. Gill pleaded guilty to the charge and has demonstrated remorse, thus taking responsibility for his actions. He has saved valuable court resources at a time when there is a backlog of cases following on the COVID-19 pandemic. He has a supportive family. He has a dated criminal record although he has a previous firearm offence from 2013. He has complied with terms of probation in the past and has complied with bail terms for this offence. He has shown that he is able to live in the community subject to strict terms. Moreover, he has addressed his drug addiction problem and has reconciled with his family. With these issues resolved, he has excellent prospects for rehabilitation provided he continues with drug addiction treatment.
[46] The aggravating factors are that the weapon posed a significant danger as the gun was loaded and he did not have a firearm licence. He has a prior s. 92 offence for possession of a prohibited weapon and possession of a firearm contrary to a prohibition order from 2013. This is a significant gap in time until the commission of the offence in the case at bar. However, in this case, the firearm was not his and the possession was not associated with drug trafficking by him. The gun was not being carried in a public place. I agree with the defence that this offence is at the low end of the spectrum despite Mr. Gill’s prior criminal record for a gun offence which took place years ago. These unusual circumstances where Mr. Gill was in temporary possession of the gun and there is no evidence against him that the firearm was possessed in connection with some other criminality call for a sentence at the lower end of the range of sentence.
[47] I have considered the mitigating and aggravating factors which I have outlined above. I have considered the joint position of counsel regarding the length of sentence to be imposed. Joint submissions play a vital role in contributing to the administration of justice and as Justice Moldaver wrote in R. v. Anthony Cook “Without them, our justice system would be brought to its knees and eventually collapse under its own weight.”: at para. 41. In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest. I accede to the joint submission that the appropriate sentence in this case is one of two years less one day imprisonment followed by two years of probation and ancillary orders. The issue is whether the sentence of imprisonment should be served in a custodial setting or in the community.
[48] There is no question but that a period of imprisonment must be imposed for this offence. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (f).
[49] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2 (e)). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[50] I have considered the need for denunciation and deterrence in this case. I am mindful that Mr. Gill has a criminal record for a previous gun offence but that it is a dated record from 2013. I also note that he complied with terms of a conditional sentence in 2007 and with terms of probation arising from the 2013 conviction. Clearly, he knows how to follow orders of the court. What is particularly relevant in Mr. Gill’s case is that he has pleaded guilty, taken responsibility for his actions and has embarked on the process of rehabilitation well before the court has sentenced him. His attendance at numerous sessions at Vitanova where he has addressed his drug addiction problems is the key to his success in my view. Drug addiction may be a lifelong problem for him but so long as he takes counselling and occupies himself with prosocial activities such as work, relations with family and giving back to his community, he has a good prospect of success.
[51] Permitting Mr. Gill to serve his sentence in the community and to continue his rehabilitation will allow him to continue to be a productive member of society. The sentence of imprisonment served in the community as a conditional sentence will achieve the objectives of denunciation and deterrence as well as rehabilitation and with restrictive terms will also be a punitive sanction. I am satisfied that serving the sentence in the community meets the objectives of sentencing and is in the public interest.
[52] Accordingly, I impose a sentence of imprisonment of two years less one day served in the community as a conditional sentence. I credit Mr. Gill with having served 11 days of pre-sentence custody. In accordance with s. 719(3.1) of the Criminal Code and R. v. Summers [2014] S.C.R. 575 at 1.5:1, that equals 17 days.
[53] In reaching this sentence I am also mindful that Mr. Gill has been on judicial interim release to reside with his sureties with house arrest during the past two and a half years. This was modified slightly to allow him to attend the drug addiction counselling program at Vitanova.
[54] In the case of R. v. Downes, (2006) 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.), Rosenberg J.A. on behalf of the Court of Appeal, held that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider: see Downes, at para. 37. The court is to look at the factors of the length of time on bail subject to the conditions; the stringency of the conditions; the impact on the offender’s liberty; and the offender’s ability to carry on normal relationships, employment and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit.
[55] These restrictive terms that have been in place are a factor I consider, and I accede to the joint submission that the credit for this period of strict house arrest should be six months against the sentence of two years less one day.
[56] In the result, Mr. Gill is credited with 6 months and 17 days of pre-sentence custody. This leaves a remaining period of imprisonment of 1 year and 4.5 months served as a conditional sentence in the community. The sentence shall have the following terms: in addition to the statutory conditions in s. 742.3 which I impose, Mr. Gill shall reside at such address as approved by his supervisor; he shall be under house arrest for the first half of the conditional sentence and shall only leave the house for the purpose of work, to attend school or attend at appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household and any medical emergencies, all shall be approved by his supervisor. In any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week unless he has the prior written approval of his supervisor.
[57] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence.
[58] Following this period of imprisonment, Mr. Gill is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer, he shall maintain employment or attend school and provide proof to his probation officer, he shall abstain from owning or possessing any weapon and he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary. He shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases.
[59] I further make an order under s. 109 prohibiting Mr. Gill from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Gill provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code.
Himel J.
Released: June 4, 2024
